Contribution
My Lords, it is a pleasure to follow the noble Viscount, and it gives me an opportunity to thank him and the other members of the committee for the work which they put in under the obviously skilful chairmanship—if I can use that word—of the noble Baroness, Lady Taylor of Bolton.
I hope it was not particularly malign—if I can pick up that word—of the shadow Leader of the House to refer to me, because I was going to follow with a couple of legal points, and one legal point in particular, which is important for the House and perhaps those outside it to bear in mind, as to what these proposals will do and, importantly, what they will not do. I suggest that paragraphs 83 to 85 of the report repay careful reading. This House is self-regulating and therefore enjoys exclusive cognisance over its own proceedings. But, as the committee correctly recognises, that principle operates within the wider law of the land. Parliamentary privilege does not enable the House, whether by Standing Order or resolution, to alter, let alone abrogate, statutory rights. I suggest that that matters here.
Existing life Peers have, under the Life Peerages Act 1958, a statutory entitlement for life to receive a Writ of Summons and to attend, sit and vote in this House. As paragraph 84 of the report records, the advice received by the committee from senior officials of the House was clear: neither a Standing Order nor a resolution can override that statutory entitlement. Indeed, the report says that an attempt to do so
“would arguably constitute a challenge to the rule of law”,
because the law is the law, and a Standing Order is, with respect, just a Standing Order.
We should therefore be clear about the legal effect of what is proposed. For existing Members, the proposal is that they should retire at the specified age. That is an expression of opinion of the House. It carries an expectation. It may carry some moral or indeed some political force. Political groups may support it; they may somehow seek to give effect to it. But it does not—it cannot—change the law. It does not extinguish the statutory right of an existing Member who might choose, for whatever reason, not to comply. Indeed, the committee itself is candid about that. Paragraph 85 says that the resolution
“would not purport to be binding”,
and the implementation would therefore
“depend on the cooperation of individual members as well as party groups”.
By contrast, the position will be very different for new Members. The committee recommends that anyone nominated for a peerage should, before the peerage is conferred, give a “written undertaking” to retire by the 80th birthday. Of course, that then can be enforced under the House’s power of sanction under the House of Lords (Expulsion and Suspension) Act 2015. That distinction seems to be constitutionally important for future Members. The obligation is one which they accept when they enter the House; the consequences of breach are made clear to them in advance. But for existing Members, for everyone sitting here today, Parliament has already conferred the relevant statutory rights for life, and those rights—and they are legal rights—cannot be rewritten or abrogated retrospectively by resolution.
Let me be clear: none of that is an argument for or against retirement at 80. My remarks are not addressed to that issue at all. They are addressed to an argument for constitutional clarity, because if the Government want to impose a legally binding requirement for a retirement age on Members, the report identifies the route, and that is legislation. That legislation would permit Parliament to identify and to decide the issue expressly. But if we decide to proceed by resolution instead of legislation, we ought to be clear about what we are actually doing. We are expressing the view of the House, and we expect existing Members to comply with it, but we are not changing, because we cannot change by way of resolution, those Members’ current existing legal entitlement to remain Members of the House. That distinction, I suggest, is not a legal technicality. It is, as the committee itself recognises, a matter of the rule of law. Whatever view we take of the merits of these paragraphs of the report, the rule of law is not an inconvenience to be worked around. It is the framework within which all of us must operate.